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Mail Fraud State Law and Post-Lopez Analysis George D Cornell Law Review Volume 82 Article 1 Issue 2 January 1997 Should Federalism Shield Corruption?-Mail Fraud State Law and Post-Lopez Analysis George D. Brown Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation George D. Brown, Should Federalism Shield Corruption?-Mail Fraud State Law and Post-Lopez Analysis , 82 Cornell L. Rev. 225 (1997) Available at: http://scholarship.law.cornell.edu/clr/vol82/iss2/1 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. SHOULD FEDERALISM SHIELD CORRUPTION?- MAIL FRAUD, STATE LAW AND POST-LOPEZ ANALYSIS George D. Brownt I. INTRODUCTION-PROTECTION THROUGH PROSECUTION? There is a view of state and local governments as ethically-chal- lenged backwaters,' veritable swamps of corruption in need of the ulti- mate federal tutelage: protection through prosecution. Whether or not the view is accurate, the prosecutions abound.2 Many metropoli- tan newspapers have chronicled the federal pursuit of errant state and local officials.3 The pursuit is certain to continue. In the post-Water- gate period, the Justice Department has made political corruption at all levels of government a top priority.4 A vigorous federal presence in t Professor of Law and Associate Dean, Boston College Law School. A.B. 1961, Harvard University, LL.B. 1965, Harvard Law School. Chairman, Massachusetts State Eth- ics Commission. The views expressed in this Article are those of the author and do not in any way represent the position of the Commission. Research for this Article was supported by a grant from the Boston College Law School Dean's Fund. The author wishes to thank his colleagues for their helpful comments arising from a presentation of an early version of this Article at a Boston College Law School Faculty Colloquium. In addition, many of the author's friends and colleagues read various drafts of the manuscript during its progres- sion. This author hopes that the changes from earlier drafts reflect adequately the con- structive comments made. 1 See, e.g., Michael Kinsley, The WitheringAway of the States, NEw REPUBLiC, March 28, 1981, at 17, 21 (listing examples of state and local government corruption). Mr. Kinsley states that we need not "do anything so drastic as abolishing the states. They could remain as reservoirs of sentiment and employers of last resort for people's brothers-in-law." 1d. at 21. For a recent academic treatment reflecting a similar perspective, see generally Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a NationalNeurosis, 41 UCLA L. REv. 903 (1994) (rejecting federalism as a norm of governance). 2 See Geraldine Szott Moohr, Mail Fraudand the Intangible Rights Doctrine: Someone to Watch Over Us, 31 HARv.J. ON LEGIS. 153, 154 (1994) ("As of December 31, 1990, 1561 state and local officials awaited trial."). 3 Brian C. Mooney, Crux ofFederal Probe: What Is Corruption?, BOSrON GLOBE, July 22, 1995, at 1 (analyzing federal investigation of the Speaker of the Massachusetts House of Representatives);John Sullivan, Mayor'sAide in Newark Is Indicted,N.Y. TIMES,Jan. 26, 1996, at B1 (reporting federal indictment of top aide to Mayor of Newark, NewJersey). 4 See Moohr, supra note 2, at 154 ("For the past twenty years, the federal government has tried to secure good government by prosecuting state and local public officials for public corruption."). CORNELL LAW REVIEW [Vol. 82:225 this area-including prosecution of state and local officials-is widely supported by observers of the federal criminal justice system.5 There is, however, a fundamental tension between these prosecu- tions and one of the important intellectual, political, and judicial cur- rents of our time: the renewed interest in curbing national authority in favor of state and local power. Whether this perspective is labeled "devolution,"6 "the new federalism," 7 or "dual sovereignty,"s it is a driving force in the debate over issues as diverse as welfare reform, 9 crime control,10 voter registration," aild term limits. 12 Many on the devolutionist side find constitutional support for their position not only in the original document and the Tenth Amendment,'3 but also in recent decisions of the Supreme Court, especially United States v. Lopez.14 The message of Lopez is that the powers of the national govern- ment are limited in fact as well as in theory. Evoking "first principles," ChiefJustice Rehnquist emphasized that " [t]he Constitution creates a Federal Government of enumerated powers"' 5 and posited the goal of "'a healthy balance of power between the States and the Federal Gov- ernment."1 6 The Lopez Court demonstrated a renewed willingness to read the Commerce Clause as containing its own internal limits.17 An 5 E.g., G. Robert Blakey, Federal CriminalLaw: The Need, Not for Revised Constitutional Theory or New CongressionalStatutes, but the Exercise of Responsible ProsecutiveDiscretion, 46 HAs- TINGS L.J. 1175, 1206 n.67 (1995). 6 E.g., Wilfred M. McClay, A More Pefect Union? Toward a New Federalism, COMMEN- TARY, Sept. 1995, at 28, 29-30 (discussing concept of devolution). 7 E.g., Richard C. Reuben, The New Federalism, A.BA. J., Apr. 1995, at 76. 8 See Kathleen M. Sullivan, Comment, Dueling Sovereigntie. U.S. Term Limits, Inc. v. Thornton, 109 HAnv. L. REv. 78, 104 (1995) (discussing debate over role of Supreme Court "as defender of state sovereignty against federal encroachment"). 9 See, e.g., Kenneth B. Noble, Welfare Revamp, Halted in Capital, Proceeds Anyway, N.Y. TIMES, Mar. 10, 1996, at 1 (reporting state changes to welfare program while federal efforts appear stalled). 10 See, e.g., House Refuses to Restore Crime PreventionFunds, BosroN GLOBE,July 27, 1995, at 16 (debate over Republican efforts to convert 1994 crime control legislation into block grant). 1 See Reuben, supra note 7, at 79 (discussing California Governor Pete Wilson's chal- lenge to the federal "motor voter" law). 12 See Sullivan, supra note 8, at 81 (analyzing the Court's 1995 decision on term limits as "best read as a preview of the Court's response to other coming controversies over the relative reach of state and federal power"). 13 See, e.g., Reuben, supra note 7, at 76 (stating that conservatives view the Tenth Amendment as "embod[ying] the founders' promise for a nation in which the states and federal government are near-equal partners"). 14 115 S.Ct. 1624 (1995). 15 Id. at 1626. 16 Id. (quoting Gregory v. Ashcroft, 501 U.S. 452, 458 (1991)). 17 By "internal limits" I mean the notion that Congress's various powers, granted in Article I, section 8, are both enumerated and limited. If Congress attempts to utilize a specific enumerated power to reach a subject matter beyond the scope of that power, the Court will strike it down as exceeding that power's internal limits. This concept is particu- 1997] POST-LOPEZANALYSIS important aspect of Lopez is that it struck down a federal criminal stat- ute.'8 The Court stressed that "[u] nder our federal system, the 'States possess primary authority for defining and enforcing the criminal law."' 19 Like the gun law at issue in Lopez, federal prosecutions of state and local officials present a heightened risk of upsetting the "healthy balance" between the state and federal systems, albeit for different reasons. After Lopez, the Court is sure to examine whether the statu- tory authority to undertake such prosecutions is within the "limited" authority of Congress. In this Article, I use the term "post-Lopez analysis" to encompass both external limits on congressional power and internal limits such as those at issue in Lopez. Indeed, the invocation of Lopez becomes an additional, somewhat symbolic, statement as to the importance of fed- eralism. Recent decisions of the Court, as well as opinions of individ- ual justices, represent a renewed interest in the vitality of a dual- sovereignty approach to constitutional issues. The Court has become increasingly willing to narrow20 or strike down21 national laws infring- ing upon state interests. In particular, New York v. United States22 resur- rects the notion of external, federalism-based limits on Congress's exercise of enumerated powers. In that case, the Court held that Con- gress cannot "commandeer" the regulatory authority of state legisla- tures.2 3 To the extent that there are external limits on the national government, a federal prosecution of state officials who make and en- force state law seems a strong candidate to trigger them. A govern- ment that cannot commandeer states perhaps cannot police them either. In this Article, I will examine the issues that federal prosecutions of state and local officials pose. The analysis focuses on prosecutions larly important in the context of the Commerce Clause, which the Court had previously interpreted in a seemingly unlimited fashion. See, e.g., Wickard v. Filburn, 317 U.S. 111 (1942); see also GEOFFREY R. STONE ET AL, CONSTTUONAL LAw 132-34 (2d. ed. 1991) (dis- cussing "[e]nforcing enumeration as a limitation on power"). "External limits" are con- straints upon congressional action that have their source in some provision or principle of the Constitution other than the power Congress seeks to exercise. See Sullivan, supra note 8, at 105-06 (discussing possible revival of external limits analysis after the Court's decision in U.S. Term Limits Inc. v. Thornton, 115 S.Ct. 1842 (1995)). See generally STONE ET AL., supra, at 139 (discussing distinction between internal and external limits).
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